FOR the last one decade, there are systematic attacks on the workers’ right to strike that have been relentlessly unleashed across all continents. And now, this right is being more resolutely challenged by employers group in the International Labour Organisation (ILO) itself where unfortunately the class collaborationist workers’ group meekly gave in to the employers’ proposal.       

It is not surprising to find that the right to strike is not set out explicitly in ILO conventions and recommendations given the class character of ILO. It is one of the oldest international tripartite “labour” forum that was established as an organ of League of Nations, the precursor to the present day United Nations Organisation, as part of the Treaty of Versailles just in the aftermath of First World War.

After the First World War, the world working class movements had a strong aspiration for socialism. This paved the way for the formation of ILO in the background of great October Revolution in 1917, ostensibly, to reconcile and if possible to control the conflict between labour and capital, so that it does not take a revolutionary turn.

The global working class movement then placed an emphasis on the power relations between labour and capital, and tried to bring attention to the inequitable distribution of gains between them. In order to dilute the role of labour in the capitalist society and thus the bargaining capacity of labour in the global labour market, and thus camouflaging those basic contradictions between the labour and capital, the ILO at that time framed the slogan that “labour is not a commodity” basically against the Marxist postulates of labour (power) being a commodity in the capitalist society. Certainly ILO always has played a role to neutralise the apparent contradictions between labour and capital in order to tame the rage and anger of working class against the system as well as to disarm and de-empower the working class organisations believing in the transformation of society.   

In the recent past one similar attempt in this regard had been initiated by ILO on the question of right to strike. It is a very serious issue for the global working class. It has not received proper attention in our country that it deserves. On November 10, 2023, the governing body, the pivotal organ of the ILO, at its 349th special session, adopted a resolution on the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) with respect to the right to strike, requesting an advisory opinion from the International Court of Justice (ICJ). In its resolution, the governing body sought the advisory opinion on this question; “Is the right to strike of workers and their organisations protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?” as, the resolution further states that, there is “serious and persistent disagreement” among the ILO’s tripartite constituents - the workers, employers and the governments, on the interpretation of the convention.

For many years, the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR), consisting of independent experts responsible for monitoring the application of ratified conventions by member-states, has taken the view that the right to strike is a corollary to the right to freedom of association. It is recognised and protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Hence, ILO jurisprudence effectively means that the right to strike derives under international law from ILO Conventions 87 (Freedom of Association) and 98 (Right to Organise and Collective Bargaining).

What does Convention No 87 say? Its Article 3 states that: ‘Workers’ and employers’ organisations shall have the right… to organise their administration and activities and to formulate their programmes’.  And furthering that spirit, Article 10 defines ‘organisation’, within the meaning of the convention, as any organisation ‘for furthering and defending the interests of workers or of employers.’  This Convention 87 was ratified by 153 countries. It is another tragic-story that India, the largest democracy has not yet ratified this core convention.

However, the employers’ group started increasingly questioning the Committee of Experts’ interpretation of Convention No 87. For more than a decade, there has been an impasse on this issue at the ILO governing body, between the worker representatives, who support the ILO jurisprudence, and the representatives of employers who have been opposing ILO’s jurisprudence and unrelentingly resisting the formal recognition of the right to strike.

It may be recalled that under Article 37 of the ILO Constitution, any question or dispute relating to the interpretation of conventions can be referred for decision to the International Court of Justice.  The court has a two-fold role: first, to settle, in accordance with international law, legal disputes submitted to it by member-States; and, second, to give advisory opinions on legal questions referred to it by duly authorised United Nations organs like ILO and other agencies of the UNO. According to the letter and the spirit of Article 37, any dispute referred, for ‘decision’, to the ICJ means that the advisory opinion rendered by the court at the ILO’s request has to be treated as authoritative and as a final pronouncement, and should be implemented as such. It is binding on the ILO. There is no right of appeal.  

It is important and interesting to recall that the Leftist coalition government in Chile led by Salvador Allende who initiated some radical measures like nationalisation of strategic assets and challenged the imperialist attempts to convert his country into a laboratory of neo-liberal reforms in early 1970s, had been deposed by a coup d’etat of the notorious imperialist stooge Augusto Pinochet with direct involvement of America.  Then the dictator Pinochet imposed more stringent restraints on collective bargaining in his servility to imperialist inspired economic de-regulations.

During those stormy days of erosion of constitutional protection to trade union activities including right to strike, the ILO’s governing body had appointed a Fact-Finding and Conciliation Commission on the Pinochet’s attacks on trade unions. This commission even at that time, had upheld the workers’ freedom of association. Consequently, the Chilean Pinochet regime was urged by the commission not to withhold recognition to the right to strike. Hence, any blanket prohibition on strike calls by trade unions would thus be contrary to the spirit of Convention No 87 and its historical interpretation

Such an inalienable right of workers - that too which mostly happens to be used as a last resort, cannot be compromised. The ILO and its all vital organs like governing body are dominated by the yellow trade union centre called the International Trade Union Confederation (ITUC). Its Indian affiliates are INTUC and HMS. BMS is also reportedly trying to get affiliated to ITUC and play a dominant role in it. Due to the unrelenting pressure from global employers’ lobby, it seems that they are agreed to refer this important matter to adjudication of International Court of Justice.

In this context, the class oriented World Federation of Trade Unions (WFTU) and its affiliates like CITU, AITUC and other Left trade unions took a principled position that it should not be referred to ICJ as the matter is settled through practice long back. Given the protracted systemic crisis of capitalism and to tide over the situation, employers have been more frantically trying to get rid of all protective components of labour laws through the so-called labour reforms that is under way across the globe. In this situation, referring this important convention to ICJ interpretation would definitely be fraught with danger.

Meanwhile, the United States of America has been authorised by the ICJ to participate in the advisory proceedings concerning the right to strike under ILO Convention 87. Moreover, USA has so far not ratified either Conventions 87 or 98.

It is to be noted that, we should not harbor any illusion on the ILO and its functioning. In the governing body of the ILO, in fact, there are not only trade union representatives, notwithstanding their dominant right-wing lenience but employers' and government representatives also. This is the only UN agency that has something to do with workers where the corporates and governments are also vocally present on its leading bodies with much more strength and majority!

So, the ILO move to refer the issue of right to strike to ICJ may become a disastrous phenomenon for the world working class. The right to strike, thus the right to stop production and profit for the capitalist class, is the Achilles heel of capitalist system. In this frontal battle, working class can’t surrender its highest form of weaponry. Working class cannot survive within the confine of bourgeois legality as we have been destined to transcend this moribund system itself, leave alone its legal pronouncement. Let us get ready to take on these challenges with all attention and preparedness.